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Jakarta Post

Court decision brings water governance reforms to a halt ( Part 1 of 2 )

  • Mohamad Mova Al’Afghani

    The Jakarta Post

Jakarta   /   Mon, March 9, 2015   /  06:39 am

The Indonesian Constitutional Court finally invalidated Law No. 7/2004 on water resources on Feb. 18. This decision sent a shockwave through the Indonesian water community. Responding to the court'€™s decision, investors put several planned water projects on hold. Ongoing projects are also under threat of invalidation.

More importantly, the decision is a death knell for Indonesian water governance in general, since the framework for conservation and management of water resources no longer exists.

To be fair, the government, investors and other stakeholders had it coming. Ten years ago the court decided that the law was '€œconditionally constitutional'€. Yes, the court did turn down the petition to invalidate the law, but this does not put the government on the winning side.

On the contrary, the 2005 decision actually left the law hanging in the air. '€œConditionally constitutional'€ means that the law could be invalidated sometime in the future if the implementing regulation contradicts the court'€™s prescriptions, which are mostly about commercialization, privatization and full cost recovery principles that were deemed to contradict Article 33 of the Constitution.

Indeed, in its 2015 decision, the court considered that the implementing regulation was inadequate and so they decided to invalidate the Water Resources Law.

But why invalidate the whole law instead of only several provisions? Hasn'€™t the court considered its implications?

The court did prescribe that in order to prevent a legal vacuum, Law No. 11/1974 on irrigation is reinstated. However, the 1974 law was a New Order government product, signed by General Soeharto, whose purpose was to induce swasembada pangan (food self-sufficiency). The 1974 law only consist of 17 articles, in contrast to the 100 articles in the revoked 2004 Water Resources Law.

So at least there are around 83 items not regulated in the 1974 law. Yes, there are provisions regulating commercialization and '€œdisguised'€ privatization in the Water Resources Law, but the majority of the law regulates means to address water problems that we currently face.

For example, there are provisions in the Water Resources Law that regulate groundwater extractions and this has been a major problem that causes land subsidence and saltwater intrusions in major cities, including Jakarta. The government enacted regulation 43/2008 to implement the Water Law'€™s provisions and the regulation details the control and management of groundwater, including the maximum debit that can be harvested, its licensing and the diameters of pipes allowed to be employed.

Thus, if we are concerned about exploitation by bottled water companies, this was the instrument that used to control them. Ironically, since the Water Resources Law was invalidated, the sector becomes somewhat '€œunregulated'€, which means that bottled water companies may actually do as they please subject to minimal restrictions by prevailing rules.

Another example is the protection of water sources. The Water Resources Law provides strong protection for water sources through imprisonment, penalties and criminal sanctions for both corporate and natural persons.

In contrast, the 1974 law does not contain any protection for water sources. There are some provisions in our environmental law, but they do not regulate water sources per se, as they talk mostly about waste and contamination.

Flooding is another important example. The Water Resources Law regulates water'€™s destructive forces, including flooding, and its implementing directives regulate flood control, mitigation and prevention. Since the court invalidates the Water Resources Law, regulation of flood control no longer has legal basis.

Drinking water and sanitation is another important area. Indonesia is struggling towards providing full access to water supply for its citizens as a part of sustainable development goals. Under the Water Resources Law, this was implemented through Government Regulation No. 16/2005 on drinking water provision systems. This regulation is by no means perfect, but it does provide some legal basis for the fulfillment of the millennium and sustainable development goals.

This however, is also the regulation that becomes a primary focus of the court'€™s decision. The court did not elaborate why this regulation was deemed incompatible with the Constitution, but presumably it was because it contains provisions on private sector participation and full cost recovery principles.

Let this be clear, the court decision will impede the fulfillment of the sustainable development goal of universal access to water and sanitation.

Furthermore, ironically, in terms of the fulfillment of the human right to water, the court decision is actually retrogressive, since the guarantee of access and protection under the Water Resources Law now becomes non-existent. Retrogressive measures are a violation of the International Covenant on Economic, Social and Cultural Rights.

The court decision will not automatically invalidate existing initiatives, but it '€œcan'€ be used as a legal avenue to stop existing initiatives. There are at least several legal channels that could be used by interested parties to stop existing water projects: petitioning to revoke water licenses and other decisions through administrative courts, judicial reviews of any implementing water regulations through the Supreme Court and civil lawsuits to invalidate water contracts in state courts.

There is no guarantee that they will succeed, as judges in those courts have complete independence to preside over their cases. However, the Constitutional Court decision provides strong and compelling arguments that are hard to ignore. All decisions, regulations and contracts must, in theory, be in line with the Constitution. Thus, I don'€™t think that existing water projects are secured.

I have heard plans that the government may issue implementing regulations to Law No. 11/1974 to fill the legal gaps, but as stated above such regulations and licenses are vulnerable to revocation when they contradict the Constitutional Court'€™s prescriptions.

Moreover, Law No. 11/1974, which only consists of 17 articles, may not be adequate to be regarded as the legal basis for complex and detailed implementing regulations as it contains no provisions to specifically regulate those issues.

As an example, the 1974 law, does not contain any clauses on drinking water provision, although there are some explanations in its elucidation. If the government insists on regulating drinking water by stipulating it in implementing regulations, these weaknesses can become a rationale for its revocation by the Supreme Court.

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The writer obtained his PhD in water law from the UNESCO Center for Water Law, Policy and Science, University of Dundee, UK.

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